July 2010:A Baker's Dozen of New Bankruptcy Judgeships?

Senate confirmation action on district and circuit court judicial nominees will take a back seat in July, as the Senate and its Judiciary Committee take up Elena Kagan’s nomination to the U.S. Supreme Court. The Kagan nomination hearings and Senate floor debate are likely to occupy most of July, followed by the congressional recess in August. That means that only September will remain for the Senate to take action on more than three dozen pending judicial nominees before adjourning in early October for the mid-term elections.

As TFL went to press in mid-June, 41 judicial nominees awaited Senate confirmation: 12 nominees for circuit courts and 29 for district courts. The total number of judicial vacancies has dropped slightly since the spring, with 100 vacancies, including 82 at the circuit level and 18 at the district level. But a large number of vacancies remain, and the FBA continues its campaign to urge the White House and Senate lawmakers to fill the vacancies.

Meanwhile, congressional lawmakers are responding positively to the need for more bankruptcy judgeships to address the growing backlog of cases in the bankruptcy courts. Legislation that would add a baker’s dozen of new bankruptcy judgeships has passed the House of Representatives and has been approved by the Senate Judiciary Committee.
FBA supports the bankruptcy judgeship legislation, the Bankruptcy Judgeship Act of 2010 (H.R. 4506), which creates 13 new permanent bankruptcy judgeships, converts 22 temporary bankruptcy judgeships to permanent status, and extends the temporary authorization for two bankruptcy judgeships for another five years. These additional judgeships reflect the recommendations of the Judicial Conference of the United States, the policy-making body of the federal judiciary.

In a May 18 letter to the leadership of the Senate Judiciary Committee, FBA President Lawrence R. Baca communicated FBA’s endorsement of more bankruptcy judgeships: "The need for additional bankruptcy judgeships is longstanding and critical, with filings increasing to near-record levels and the bankruptcy courts in peril of losing many of their judicial resources … [W]e urge Congress to establish the additional bankruptcy judgeships authorized by H.R. 4506, given the increasing strain of caseloads that the bankruptcy courts face and the increasing complexity of bankruptcy litigation."

To pay for the 13 new permanent bankruptcy judgeships, the legislation increases bankruptcy filing fees by $1 for filings under Chapter 7 and Chapter 13 of the Bankruptcy Code and by $42 for filings under Chapter 11 of the code. For a number of years, the filing fees for Chapter 7 bankruptcy cases have been $299 and the filing fees for Chapter 13 cases have been $274.

Courthouse Construction Controversy Continues
Courthouse construction, a sometimes controversial topic, is likely to become even more contentious as federal spending receives greater scrutiny in the days ahead. In fact, courthouse construction was the subject of a heated congressional hearing held before the House Subcommittee on Economic Development, Public Buildings, and Emergency Management on May 24. The hearing was sparked by a draft report prepared by the U.S. Government Accountability Office (GAO), which alleged that recently constructed federal courthouses have been built larger than necessary and have cost taxpayers $835 million in construction funds since 2000. The GAO also alleged that annual maintenance costs for the extra space is $51 million. The Judicial Conference and the General Services Administration, which has responsibility for federal buildings, separately contested the GAO findings. Two federal judges on behalf of the Judicial Conference criticized the GAO report, saying that the federal judiciary is working hard to use courthouse space efficiently based on policies that balance appropriate courtroom sharing with efficient case management. The GAO and the federal judiciary have sparred over courtroom sharing policies in the past.

Federal Judges’ Concern About Criminal Sentencing
A wide majority of federal judges—62 percent—believes that mandatory minimum sentences for various federal crimes are too high. That finding comes from a recent survey of the federal judiciary by the U.S. Sentencing Commission on federal sentencing practices under the advisory guidelines system that has been in effect since 2005.

Judicial concern about mandatory minimum sentences reflects the opinion of a significant number of judges who sentenced offenders in 2008 and 2009. The 639 judges who participated in the survey handed down nearly 80 percent of the approximately 150,000 sentences imposed during those two years, the Sentencing Commission reported. The judges participating in the survey also represented 68 percent of the 942 judges to whom the survey was sent.